Transparency cannot be selective: Neither attorney/client nor the Jennings rule relieve the Mayor and Council of their duty to keep residents informed on Palmer.

By Eugene Flinn

Eugene Flinn

Palmetto Bay’s elected officials need to understand that it is their duty to keep all residents informed on village-wide concerns. I previously covered the Jennings Rule (Palmetto Bay News, April 18 – May 2). The Jennings rule is limited to one specific circumstance: it prohibits private communication on pending zoning issues with officials outside of the public hearing.

In Palmetto Bay, you only need to say one word, “Palmer” and everyone stiffens for the controversy. However, as unpleasant as this discussion may be, it is time for a public discussion of the lawsuits to correct any misunderstandings circulating in public. Specifically, residents should be aware of the amount of money being spent on litigation and the scope of the issues actually being appealed, the expected results of continued court proceedings.

Founding Councilman Ed Feller and I addressed the council at the January meeting. We laid out a reasonable request to bring transparency to the process and have residents brought up to date on the status of the Palmer issue. Unbiased courts have ruled against Palmetto Bay on far too many occasions, most recently in February 2011 and then again in December, 2011. We asked for the court decisions be put on the village web site. Some opinions are 15 pages long and contain outstanding synopsis of the status of the cases, so anyone reading these decisions would better understand the status of the cases. Too few know how to access these decisions, which is why they should be posted on the web site. I was quite shocked at the statements of Mayor Stanczyk and Vice Mayor Pariser made after I left the meeting which made it clear that they either did not understand the context or intent of my statements or simply want you to believe that they cannot discuss Palmer. As an attorney, I know what is permitted by the law and legal ethics. Obviously I don’t want to discuss what was said at mediation. There is no transcript or record kept anyway, but it is important to disclose that many attempts have been made to mediate. There were no questions for clarification from either the mayor or vice mayor after I spoke and I left prior to their comments which they saved for the end of the meeting.

The council meets with the manager and attorneys in private to discuss legal strategy in what is known as “shade sessions.” These sessions are limited to cases pending in court. A court reporter is present who takes down a verbatim record of all discussions and all actions taken during the session. Obviously, council members would not want to make their strategies public until litigation is completed. For this reason, the discussions and details are protected by attorney / client privilege to a limited point; the transcripts are available for public viewing once the law suit is over. Of course, it can be argued that this creates an incentive to keep litigation pending. An elected official up for reelection may make irrational decisions on continuing the lawsuit solely to push back release of transcripts past election, or at least past qualification time, keeping irrational and unsound theories hidden from the voters for as long as possible.

Let’s get one thing straight; case status and expectations are not privileged strategy and should be discussed with the people who are funding it, meaning the taxpayers. Elected officials cannot stonewall a public discussion on Palmer by claiming “attorney/client privilege.” You also cannot take public information; transfer it to an attorney and now claim that the same information is now protected. That is disingenuous. People want to know what is really going on and they have the right to know. The lawsuits involve the whole of Palmetto Bay against Palmer, not Palmetto Bay Council versus Palmer. Unfortunately, I believe that the current Mayor and Vice Mayor have forgotten whom they represent and havemade this litigation against Palmer far too personal.

It is ridiculous to say that anyone asking for a public explanation on Palmer is asking the council, as Mayor Stanczyk claimed, to ‘break the law’ or that it would ‘put the village at risk’ as reported in the Miami Herald: Palmetto Bay to appeal court decision on school expansion, published 1/12/2012. Excuses and failure to discuss, I believe, are transparent maneuvers designed to frustrate the public’s understanding of Palmer. The public should be treated as the clients and not, in my opinion, as irrelevant subjects or pawns in this expensive and never ending litigation

Vice Mayor Pariser is a lawyer. I am sure he has been able to discuss a case without waiving privileged materials, otherwise how can he advocate the issue before a judge, or speak to the press? Likewise, he needs to keep residents informed about the progress of Palmer. He should discharge his duty as vice mayor as he would as their lawyer as defined by the Rules of Professional Conduct. These rules provide that lawyers should maintain communication with clients concerning the representation. And yes, the rules provide that a lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules or by law.

The goals pronounced by these Rules are especially important to the Palmer lawsuit. I hear far too many people attacking the court for the rulings. The Vice Mayor, especially, should see that the misinformation has potential for eroding public confidence in the courts and believe me, that is not where the problems lie in this case. These same Florida Bar rules providethat “…a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system, because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”

The village is being put at risk, not through potential public discussions, but by the decisions made by the present Mayor and Vice Mayor. I believe the risk they are truly referring to is the risk to their own political careers if the present council ever really became transparent in this Palmer litigation.

Eugene Flinn is the founding Mayor of Palmetto Bay, having served from 2002 until term limited in 2010. Are you receiving the periodic e-newsletter featuring Eugene Flinn’s South Dade Updates? These e-news provide updates on activities, events and issues affecting our area. Visit Eugene Flinn’s blog at http://www.eugeneflinn.blogspot.com or e-mail him at EugeneFlinn@aol.com.